287 F.R.D. 392
S.D. Tex.2012Background
- Compass Bank seeks substituted service on Max Katz and Kathleen Katz in Mexico under Rule 4(f)(3).
- Initial service attempts were at a private California mailbox; the center’s owner said the defendants resided in Mexico.
- A second round of service attempts at a California residential address found no forwarding information or current residents.
- Plaintiff believes defendants are in Tijuana, Mexico, and requests email service to all known emails as notice of the suit.
- The court denies substituted service by email, finding the Hague Convention applies and Mexico objects to alternative methods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hague Convention governs service in this case | Hague not applicable due to unknown address | Hague applies; must use Central Authority if address known or unknown | Hague applies; cannot use 4(f)(3) |
| Whether Rule 4(f)(3) email service is permissible given Mexico's declarations | Court should authorize email service | Mexico objects to alternate channels; Central Authority required | Not permissible; Mexico's declarations prohibit Article 10 alternatives; Central Authority only |
| Whether plaintiff exercised reasonable diligence to locate defendants | Efforts to locate include website address and prior addresses | Defendant addresses were not sufficiently pursued; known/unknown not clearly established | Plaintiff failed to establish unknown address; Hague methods control |
Key Cases Cited
- Nuovo Pignone, SpA v. STORM AN ASIA M/V, 310 F.3d 374 (5th Cir. 2002) (Hague Convention compliance mandatory when applicable)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) (Hague Convention compliance and due process in service abroad)
- Velasco v. Ayala, 312 S.W.3d 783 (Tex.App-Houston [14th Dist.] 2009) (Mexico objected to all Article 10 alternatives; service governed by Hague)